No Bar On Filing Anticipatory Bail Applications In Triple Talaq Cases; But Should Plead Reasons For Not Approaching Magistrate: Kerala HC [Read Judgment]

The Kerala High Court has held that Anticipatory Bail  application under Section 438 Cr.P.C. is not barred in a case in which an offence under the provisions of Muslim Women (Protection of Rights on Marriage) Act, 2019 is alleged.

But, if an accused wants to avail the right under Section 438 Cr.P.C., he should specifically plead in an application under Section 438 Cr.P.C. about the reasons for not approaching the Magistrate under Section 7(c) of the Act, 2019, Justice PV Kunhikrishnan said while directing the accused (who filed an anticipatory bail application before the High Court) to first approach the concerned Magistrate by filing Bail Application is filed under Section 7(c) of the Act, 2019.

In this case, the accused contended that if he files a Bail Application before the Magistrate Court under Section 7(c), there is every chance to remand him by the Magistrate because the Magistrate can consider the Bail Application only after issuing notice to the defacto complainant. He submitted an application under Section 438 Cr.P.C. is the only remedy available to him.  The issue considered by the Court thus was whether an accused involved in an offence under the Act, 2019 can file a petition under Section 438 Cr.P.C. without filing a Bail Application under Section 7(c) of the Act, 2019 before the Magistrate court concerned?

Referring to the provisions of the Act, the court noted that there is no such prohibitory Section in the Act, 2019 (unlike that in SC-ST Act) restraining the court in entertaining an application under Section 438 Cr.P.C. The court noted that a Magistrate can entertain an application under Section 437(1) Cr.P.C. only if the accused is arrested or detained without warrant by an officer in charge of the police station or the accused appears before the court or the accused is brought before a court. "But, it is to be noted that the three pre-conditions to consider a Bail Application under Section 437(1) Cr.P.C. is not there in Section 7(c) of the Act, 2019.", the judge said. The court further said:

"In Section 7(c), it is only stated that 'on an application filed by the accused'. The appearance of the accused before the court is not insisted as per Section 7(c) of the Act, 2019. Similarly arrest and detention of the accused without warrant by the police is not contemplated in Section 7(c) of the Act, 2019 for consideration of the Bail Application. Similarly arrest and production of the accused before the Magistrate are also not contemplated in Section 7(c) of the Act, 2019. As far as consideration of Bail Application under the Act, 2019 is concerned, Section 7(c) is a complete code."

The Court issued the following guidelines in the matter of consideration of bail application under Section 7(c)

1. If an accused in a case registered under the provisions of the Act, 2019 filed a Bail Application before the Magistrate under Section 7(c), his personal presence before the Magistrate is not necessary till final orders are passed in the Bail Application. The personal presence of the victim is also not needed. The accused can file the Bail Application through a lawyer if he intends to do so.The victim also can contest the bail application through a lawyer if she decides so.
2.  If a Bail Application is filed under Section 7(c) of the Act, 2019, the Magistrate should hear the married Muslim woman upon whom talaq is pronounced.
3. The order passed in a Bail Application filed under Section 7(c) should be a speaking order.
4. If a Bail Application filed by an accused under section 7(c) of the Act, 2019 is allowed, the Magistrate can direct the accused to appear before the court within a short period to comply the bail conditions including the execution of bond, etc.
5. If a Bail Application is dismissed by the learned Magistrate under Section 7(c) of the Act, 2019, the Investigating Officer can take up follow up action and arrest the accused, if necessary.
6. If a Bail Application is dismissed by the learned Magistrate under Section 7(c) of the Act, 2019, the accused can challenge that order, if he intends to do so, in accordance with law. At that stage, the accused can even file an application under Section 438 Cr.P.C., if there is an apprehension of arrest.
7. If an application under Section 7(c) is allowed, the married Muslim woman upon whom a talaq is pronounced can challenge that order in accordance with law.

Case Details

Case name: Nahas vs. State of Kerala

Case no.: Bail Appl..No.9163 OF 2019

Coram: Justice PV Kunhikrishnan

Counsel: Advocates P.S.NANDANAN, P.N.ANOOP and PP .AJITH MURALI

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